Court Rules Declines to Enforce Waiver Form in Ear Piercing Injury Case – Claire’s Boutiques v. Locastro

Just about everyone is asked to signed a waiver form from time to time. But just because you sign it, doesn’t mean the form is enforceable. In Claire’s Boutiques v. Locastro, Florida’s Fourth District Court of Appeal reversed a lower court’s ruling that a parent who signed a waiver form related to her daughter’s ear piercing was liable for the piercing company’s costs and fees in a law suit filed after the daughter sustained an infection.

Alexis Locastro went with her mother, Amy, to a Claire’s Boutique in Florida to get an ear cartilage piercing in August 2006. Following the piercing, Alexis developed an infection in her ear which ultimately required her to be hospitalized and resulted in permanent disfiguration of her ear.

Amy Locastro filed a personal injury lawsuit against Claire’s on behalf of her daughter, alleging that the company’s negligence caused the infection. At trial, although it was established that Claire’s requires employees to undergo a piercing and sterilization training, no evidence was produced showing that the employee who performed Alexis’ piercing was trained. It was also revealed at trial that Amy Locastro signed a waiver form prior to the piercing. In part, the form states

I hold only myself liable and hereby release and waive any and all claims that I or the minor may make as a result of this ear piercing. I further agree that I shall indemnify and hold Claire’s harmless with respect to any and all claims that I or my minor child may make as a result of this ear piercing…

The jury returned a verdict in Locastro’s favor, finding Claire’s 75% negligent and awarding Alexis $69,740 for medical expenses and pain and suffering. In a separate action, Claire’s sued Amy Locastro, asserting that she was required to indemnify Claire’s for all costs related to the action as a result of signing the waiver form. A trial court agreed, entering a judgment against Amy Locastro for $200,274, which included defense costs and attorney’s fees incurred by Claire’s in defending the lawsuit.

On appeal, the Fourth District reversed the decision, finding that the waiver form was void as against public policy. “When the agreement induces a parent to act contrary to the child’s welfare, the state as parens patriae must step in and void such an agreement,” the court held. Citing the Florida Supreme Court’s 1982 decision in Joseph v. Quest, the Court stated that public policy dictates that a parent should not be generally liable for contribution for injuries sustained by their children.

This public policy concern was even stronger in the present case, according to the court, because “not only would the non-negligent parent be responsible for the entire amount of the child’s damages…, but Amy, the mother, is also required to repay all of Claire’s costs and legal fees, which in this case amounted to almost three times the amount of damages.”

As a result, the court reversed the decision on Amy Locastro’s liability. However, the court also certified the following question to the state supreme court

Whether an indemnification agreement executed by a parent agreeing to indemnify a commercial activity provider for its own negligence in causing injury to the parent’s child is enforceable?

The Florida Supreme Court is yet to rule on this question.

If your child was recently injured in an accident, call the South Florida child injury attorneys at Anidjar & Levine today. A free consultation with an experienced injury lawyer who represents clients throughout the region, including in Pompano Beach, Boca Raton and Hialeah – can help you to determine whether or not legal action might be appropriate. You can reach the Fort Lauderdale offices at 800-747-3733.

Related blog posts:

Proving Negligence in A Florida Personal Injury Lawsuit – Whyte v. United States Postal Service

Florida Court Upholds Waiver in Cruise Ship Activity Injury Case – Johnson v. Royal Caribbean Cruises

Florida Court Allows Products Liability Case to Proceed without the Product – Murray v. Traxxas Corp.